Citation Nr: 1341583 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-17 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 2. Entitlement to service connection for nerve damage to the right ankle. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1973 to October 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Roanoke, Virginia Regional Office (RO). At his request, the Veteran was scheduled to testify at a videoconference hearing before the Board in April 2013. He cancelled the request (and did not seek rescheduling). Accordingly, the Board finds his request for a hearing to have been withdrawn. A June 2012 statement of the case (SOC) reopened the Veteran's claim of service connection for a back disability, and denied it on the merits. Nonetheless, the Board must decide whether new and material evidence was received in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The issues of service connection for right ankle nerve damage and for a back disability (on de novo review) are being REMANDED to the VARO. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. An unappealed November 2001 rating decision declined to reopen the Veteran's claim of service connection for a back disability, noting the evidence received did not show the Veteran had a chronic back disability incurred in service. 2. Evidence received subsequent to the November 2001 rating decision tends to show the Veteran has a back disability that is related to his service-connected left ankle disability, relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duties to notify and assist a VA claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Inasmuch as this decision grants the benefit sought (reopens the claim), there is no reason to belabor the impact of the VCAA. Any notice or duty to assist omission is harmless. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the appellant's VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection for a back disability (claimed as secondary to a service-connected ankle disability was originally denied by a January 1997 rating decision, then by subsequent rating decisions. The Veteran was provided notice of the November 2001 decision in a December 2001 letter. He did not appeal it (or submit evidence in the year following) and it became final. 38 U.S.C.A. § 7105. A final decision by the RO may not be reopened and allowed based on the same factual basis. 38 U.S.C.A. § 7105. However, under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The VA is required to review for its newness and materiality only the evidence received since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the November 2001 rating decision included the Veteran's service treatment records, private and VA medical records, including the reports of VA examinations, and an opinion from a VA physician. The Veteran was seen in a private facility in January 1996 and reported right ankle pain after falling on his back in October 1995. The assessment was musculoskeletal pain. A chiropractor noted in October 1996 that he first saw the Veteran that month for complaints of low back and leg pain since October 1995. The Veteran indicated that he bent to pick something up in October 1996 and felt a sudden, sharp pain in his low back. There was limitation of motion of the lumbosacral spine. VA outpatient treatment records show the Veteran complained of low back pain in March 1996. He said he fell while walking in November and landed upright in a seated position. Magnetic resonance imaging of the lumbar spine in October 1996 revealed a herniated nucleus pulposus and bulging disc. When the Veteran was seen in January 1997, the examiner noted the Veteran's history of a left ankle injury in 1975 and that he had worn a brace since then. The examiner stated that when the Veteran fell in October 1995, he experienced low back pain with radicular features. He noted the Veteran acknowledged his back began hurting long before his fall. The Veteran also maintained his chiropractor related the possibility of an exacerbation of his recent injury to his original left ankle injury and subsequent back problems. The VA examiner concurred these events might be related. In a June 1997 statement, the Veteran's pastor related he was on a trip with the Veteran in October 1995 when his ankle gave out and the Veteran fell. The pastor said the Veteran's back hurt and he could hardly walk. In July 1997, the Veteran's chiropractor noted the Veteran stated he fell in 1995 due to his ankle giving out. The chiropractor observed that a chronic ankle injury such as this would alter gait, which would create abnormal stresses in the low back and could, over time, contribute to increased degeneration of the intervertebral discs in the low back. When the discs degenerate, they become much more likely to herniate, especially when subjected to sudden, jarring injury. When he was seen in a VA outpatient treatment clinic in August 1997, it was noted that the Veteran had a history of back pain. The assessment was low back pain secondary to gait disturbance from an old left ankle fracture. The Veteran was examined by the VA in August 1997. It was noted that he injured his left ankle in 1975. He related he fell in October 1995 after his ankle twisted and that he had back pain and then leg numbness. The examiner concluded the Veteran reported a fall onto his back had resulted in back pain. He commented that it was true that trauma can cause protrusion of a disc, but this is after disc disease has been existent for a long time. He thought it was unlikely that the fall in itself caused a normal disc to protrude. The examiner added that the Veteran most likely had some protrusion of the disc and this might have exacerbated it, but the disc disease he had was not likely caused by the instability he had in the ankle. He further stated that the existence of disc disease was not likely caused by the ankle injury or the result of changes in gait from the ankle injury. In March 1999, a VA physician indicated he reviewed the Veteran's chart and related he had seen him in November and December 1996. The physician stated that in his note in December 1996, he told the Veteran it is possible a chronic ankle injury could bring about or exacerbate a low back problem, but that it would be very difficult to say absolutely that this was the case. VA outpatient treatment records show the Veteran was seen in November 2001 and it was noted he had no significant gait deviation. The March 2001 rating decision determined new and material evidence had not been received to reopen the Veteran's claim of service connection for a back disability. It was noted the evidence of record did not show a back disability was incurred in service and there was no objective evidence linking a back disability to the Veteran's service-connected left ankle disability. Following the receipt of additional evidence, a November 2001 rating decision again concluded new and material evidence had not been received to reopen the claim of service connection for a back disability. It was indicated the additional evidence did not establish the Veteran had a chronic back disability at the time of his separation from service. Evidence received since the November 2001 rating decision includes private and VA medical records, the reports of VA examinations, Social Security Administration records and statements from the Veteran's spouse and two acquaintances. The Veteran underwent spinal fusion and a neural foraminal decompression at a private facility in June 2011. On VA spine examination in November 2011, the Veteran reported he had experienced low back pain since 1978, but was unsure of the events surrounding his complaints. He denied any injury. The diagnosis was mild degenerative changes, L4 and L5. The examiner commented she reviewed the claims folder, to include the service treatment records, medical records and conducted a physical examination. She concluded there was no direct relationship to be found that the Veteran's thoracolumbar spine condition was related to his service-connected left ankle disability. The Veteran was seen by a private physician in November 2011. The examiner noted the Veteran questioned whether the prolonged gait disturbance from the ankle injury and leg length inequality might have contributed to the spinal condition. The private provider stated this was reasonable. The Board finds that the evidence received since the November 2001 rating decision addresses an unestablished fact necessary to substantiate the claim of service connection for a back disability (as it tends to show he has a back disability that is related to his service-connected left ankle disorder), and considered in conjunction with the record raises a reasonable possibility of substantiating the claim. The private provider's opinion on November 2011 examination tends to relate the Veteran's back disability to a gait disturbance secondary to service-connected ankle disability. Taken at face value as required for purposes of reopening, the evidence received is both new and material, and the claim for service connection for a back disability may be reopened. De novo review is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for a back disability is granted. REMAND The Board finds that further development is needed for proper de novo adjudication of the reopened claim of service connection for a back disability. The Veteran argues he has back and right ankle disabilities that are secondary to his service-connected degenerative joint disease of the left ankle. The Board notes that following the November 2011 VA spine examination, it was concluded the Veteran's back disability was not related to his left ankle condition. The examiner asserted there was no clear evidence suggesting that an injury to one leg can cause major problems with the opposite uninjured leg, except for certain specific conditions, generally involving leg length discrepancy. She also stated the Veteran did not have right ankle pathology. As is noted above, a private physician opined in November 2011 that a gait disturbance due to the ankle injury may have contributed to the back condition. Accordingly, there is a conflict in the medical evidence which must be resolved. Regarding the claim of service connection for a right ankle disability, the Board notes that a VA podiatrist stated the Veteran had surgery for decompression of left lower extremity nerve entrapments in January 2011. He commented that due to the Veteran's unusual gait pattern, which was due to the bilateral nature of his nerve entrapment condition, it was more likely than not that he was experiencing pain and immobility in the right lower extremity. Finally, while some Social Security Administration (SSA) records are associated with the record, the complete medical records considered in connection with the Veteran's award of SSA disability benefits are not; such records are constructively of record, may contain pertinent information and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure from SSA copies of the complete medical records considered in connection with the Veteran's award of SSA disability benefits. If the records are in the form of a disc, the RO should arrange for them to be transcribed (as the Board does not have the capacity to view the disc). 2. The RO should thereafter arrange for the Veteran to be scheduled for a VA orthopedic examination to secure an opinion as to whether it is at least as likely as not (a 50 % or higher probability) that the Veteran's back disability was caused or aggravated (permanently increased in severity beyond normal course) by his service-connected left ankle disability. The examiner should also determine whether the Veteran has a right ankle disability and, if so whether it was caused or aggravated (permanently increased in severity beyond normal course) by his service-connected left ankle disability. If it is determined that the back disability or a right ankle disability was not caused, but was aggravated by the left ankle disability, the examiner should quantify, if possible, the degree to which the back or right ankle disability is due to such aggravation. 3. Thereafter, the RO should review the record and readjudicate the claims (service connection for a back disability de novo). If either remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs